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###### Department of Agriculture

###### Animal and Plant Health Inspection Service

          - 7 CFR Parts 360 and 361
          - [Docket No. APHIS-2008-0097]

# AGENCY:

Animal and Plant Health Inspection Service, USDA.

# ACTION:

Affirmation of interim rule as final rule.

# SUMMARY:

                        We are adopting as a final rule, without change, an interim rule that amended the noxious weed regulations by adding Old World climbing fern (                        *Lygodium microphyllum*                         (Cavanilles) R. Brown) and maidenhair creeper (                        *Lygodium flexuosum*                         (Linnaeus) Swartz) to the list of terrestrial noxious weeds. This action is necessary to prevent the artificial spread of these noxious weeds within and into the United States.                    

# DATES:

Effective on May 3, 2010, we are adopting as a final rule the interim rule published at 74 FR 53397-53400 on October 19, 2009.

# FOR FURTHER INFORMATION CONTACT:

Dr. Alan V. Tasker, Noxious Weeds Program Coordinator, Emergency and Domestic Programs, PPQ, APHIS, 4700 River Road Unit 26, Riverdale, MD 20737-1236, (301) 734-5225; or Ms. Dorothy Wayson, Regulatory Coordination Specialist, Regulatory Coordination and Compliance, Permits, Registrations, Imports, and Manuals, PPQ, APHIS, 4700 River Road Unit 52, Riverdale, MD 20737-1236, (301) 734-0772.

# SUPPLEMENTARY INFORMATION:

## Background

                    Under the authority of the Plant Protection Act (PPA, 7 U.S.C. 7701*et seq*.), the Animal and Plant Health Inspection Service (APHIS) administers the noxious weeds regulations in 7 CFR part 360, which prohibit or restrict the importation and interstate movement of those plants that are designated as noxious weeds in § 360.200. The PPA defines “noxious weed” as “any plant or plant product that can directly or indirectly injure or cause damage to crops (including nursery stock or plant products), livestock, poultry, or other interests of agriculture, irrigation, navigation, and the natural resources of the United States, the public health, or the environment.”                

                    Under the authority of the Federal Seed Act of 1939, as amended (7 U.S.C. 1551*et seq*.), the U.S. Department of Agriculture regulates the importation and interstate movement of certain agricultural and vegetable seeds and screenings. Title III of that Act, “Foreign Commerce,” requires shipments of imported agricultural and vegetable seeds to be labeled correctly and to be tested for the presence of the seeds of certain noxious weeds as a condition of entry into the United States. APHIS’ regulations implementing the provisions of title III of the Federal Seed Act are found in 7 CFR part 361. A list of noxious weed seeds is contained in § 361.6. Paragraph (a)(1) of § 361.6 lists species of noxious weed seeds with no tolerances applicable to their introduction into the United States.                

                    In an interim rule1                     effective and published in the                     **Federal Register**                     on October 19, 2009 (74 CFR 53397-53400, Docket No. APHIS-2008-0097), we amended the regulations by adding Old World climbing fern (                    *Lygodium microphyllum*                     (Cavanilles) R. Brown) and maidenhair creeper (                    *Lygodium flexuosum*                     (Linnaeus) Swartz) to the list of terrestrial noxious weeds in § 360.200(c) and to the list of noxious weed seeds with no tolerances applicable to their introduction in § 361.6(a)(1). In that interim rule, we also made the weed risk assessment (WRA) and the Federal decision document available for public review and comment.                

                    We solicited comments concerning the interim rule, WRA, and the Federal decision document for 60 days ending December 18, 2009. We received three comments, two from private citizens and one from a State Department of Agriculture and Consumer Services, by that date. All of the commenters supported the addition of both Old World Climbing Fern (                    *L*.                     *microphyllum*) and Maidenhair Creeper (                    *L*.                     *flexuosum*) to the list of Federal Noxious weeds.                

                    One of the commenters asked that we consider adding other species within the Schizaeaceae family to the list of Federal noxious weeds. Specifically, the commenter was concerned that other species in the Schizaeaceae family are weedy and/or invasive, because                     *L*.                     *microphyllum*                     and                     *L*.                     *flexuosum*                     have been reported to interbreed with closely related species. A link to a reference on the Internet was provided by the commenter to try to illustrate that behavior.                

                    In our assessment of                     *L*.                     *microphyllum*,                     *L*.                     *flexuosum*, and                     *L*.                     *japonicum*                     we did not encounter any evidence that these species are capable of hybridizing with any other species. The study that the commenter referred to examines the reproductive biology of                     *L*.                     *microphyllum*                     and                     *L*.                     *japonicum*                     and provides evidence that                     *L*.                     *microphyllum*                     is capable of intergametophytic crossing. Intergametophytic crossing refers to two different gametophytes of the same species crossing with each other; it does not refer to crossing of two different species, which concerned the commenter. Two other species of                     *Lygodium*                     were once reported to hybridize, but there is no immediate indication that these or any other members of the Lygodiaceae or Schizaeaceae families are weeds. APHIS will continue to explore the literature to determine whether any additional Lygodiaceae or Schizaeaceae warrant regulation.                

Therefore, for the reasons given in the interim rule and in this document, we are adopting the interim rule as a final.

This action also affirms the information contained in the interim rule concerning Executive Order 12866 and the Regulatory Flexibility Act, Executive Orders 12372 and 12988, and the Paperwork Reduction Act.

Further, for this action, the Office of Management and Budget has waived its review under Executive Order 12866.

      ( print page 23152)    

# List of Subjects

### 7 CFR Part 360

      - Imports
      - Plants (Agriculture)
      - Quarantine
      - Reporting and recordkeeping requirements
      - Transportation
      - Weeds

### 7 CFR Part 361

      - Agricultural commodities
      - Imports
      - Labeling
      - Quarantine
      - Reporting and recordkeeping requirements
      - Seeds
      - Vegetables
      - Weeds

# PART 360—NOXIOUS WEED REGULATIONS

# PART 361—IMPORTATION OF SEED AND SCREENINGS UNDER THE FEDERAL SEED ACT

Accordingly, we are adopting as a final rule, without change, the interim rule that amended 7 CFR parts 360 and 361 and that was published at 74 FR 53397-53400 on October 19, 2009.

                    Done in Washington, DC, this 27th                     day of April 2010.                

Kevin Shea

Acting Administrator, Animal and Plant Health Inspection Service.

# Footnotes

1.                             To view the interim rule, the supporting documents, and the comments we received, go to (                        *http://www.regulations.gov/​fdmspublic/​component/​main?​main=​DocketDetail&​d=​APHIS-2008-0097*).                    
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[FR Doc. 2010-10282 Filed 4-30-10; 8:45 am]

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